Freedom of Assembly, Association, Expression, Information, + Right to Privacy, Public Order Related Provisions

Question 1

What did the following Case entail:

DPP v Jones (1992)

DPP = Director of Public prosecutions

Answer 1

RESTRICTION TO FREEDOM OF ASSEMBLY
(CONSIDERED AS RESPONSIBLE FOR THE CHANGE IN THE VIEW TOWARD FREEDOM OF ASSEMBLY

• Concerned an Assembly on a public highway
• a S.14A of Public Order Act Order was in force at the time, prohibiting trespassory assemblies, meaning they had no access to land which usually only held a ‘limited right of access’ in relation to the public.
• KEY QUESTION: What are the limits of the public’s right of access to the public highway?

Held, 3-2 on appeal, main usage of highway is for public access and passage; but the COFI had previously restricted that right. “reasonable usage”.THE LAW SHOULD NOT MAKE UNLAWFUL WHAT IS COMMON PLACE AND ACCEPTED.

-A public highway is a place which the public may enjoy for any reasonable purpose - L Irvine.

Question 2

FREEDOM OF ASSEMBLY/ASSOCIATION is located where in the ECHR and HRA 1998?

What is the Effect of S. 6(1) of the HRA? (Not within the articles of the ECHR, but section 6(1) of the HRA itself.

Answer 2

ECHR
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

HRA 1998 - Schedule 1 - The articles, Art. 11.

** S. 6(1) of the HRA, a public authority cannot lawfully act in a manner incompatible with the convention rights.

Question 3

CASE: Aldemir v Turkey (2007)

Answer 3

DISPROPORTIONATE RESTRICTION OF FREEDOM OF ASSEMBLY

Such Regulation of Protest should not represent a hidden obstacle to freedom of assembly.

Question 4

CASE: Redfearn v UK (2012)

Answer 4

FREEDOM OF ASSOCIATION / POLITICAL AFFILIATION

Redfearn was a first rate employee with a tie to a controversial political party; ran as councillor for said party and was subsequently fired from his job with a transport company - company concerned that what it might mean for the company.

Held1, employment tribunal accepted the appeal as it was based on racial discrimination (ie BNP are racist).

Held2, Not for court to judge the views of a particular political party - has to be defended even if we are offended/shocked by the views of the political party.

Held3, UK was declared in violation of freedom of association by the European Court of Human Rights.

Question 5

BUKTA v HUNGARY (2007) -EXPLAIN

Answer 5

Disproportionate restriction on Freedom of Assembly

Held, disbanding an assembly based on lack of requisite prior notice, where the assembly is peaceful and without illegal conduct, amounts to a disproportionate restriction on freedom of assembly.

Question 6

Aldemir v Turkey (2007)

Answer 6

Held, Regulation of protests should not represent hidden obstacles to freedom of assembly.

I.e., you can’t have requisite prior notice demand of 4 months, and 100 different documents to fill out. Must be fairly easy.

Question 7

Christians Against Racism/Facism v UK (1980)

Established:

Answer 7

Held, Positive duty on state to provide safety or ban the procession.

Established A positive duty to protect individuals where a procession/assembly has grown out of control.

Question 8

Austin v UK (2012)

Answer 8

KETTLING - Up to 7 hours behind a police cordon in London; a deprivation of liberty under Art. 5?

Held, Dismissed- even if there had been a deprivation of liberty, it was justified for a legitimate purpose

Question 9

LEGISLATION

S. 62, 63, 64 of the Civic Government (Scotland) Act 1982, indicates:

Answer 9

S.62 Civic Government (Scotland) Act 1982
(THIS IS ONLY FOR PROCESSIONS - NOT FOR ASSEMBLIES!!!!!)
General requirement of advance notice of public processions (i.e. assembly).
-IN GENERAL, ORGANIZERS MUST GIVE RELEVANT COUNCIL 28 DAYS NOTICE OF PROCESSION.
-advance notice is not required for processions which have been exempted by the Scottish Ministers from giving notice.
-the local authority may waive the full period of notice but the requirement of notification - in response to spontaneous events urgently organized after a particular event.

S.63 - Council may order the prohibiting of the procession or add conditions as to its time, date, duration, and route.

S.64 - appeals to the prohibiting of the procession are sent to the local sheriff, he can uphold the appeal if the feels the council erred in law.

Question 10

LEGISLATION

PUBLIC ORDER ACT 1986

S. 14

S. 16

Answer 10

REGULATES ASSEMBLIES

S. 14 - grants powers to regulate and control public assemblies for police (as amended by the Criminal Justice and Public Order Act 1994).

• Grounds for prohibition available to the police are if it is reasonable that “serious consequences” will arise.
• these powers apply to a ‘public assembly’ - defined in S. 16 as “an assembly of 20 or more persons in a public place which is wholly or partly open to the air”

S. 14A - Prohibits “trespassory assemblies” of more than 20 people.

S. 14B - Someone who organizes or participates in a trepassory assemble is in breach of the law.

Question 11

NAME A CASE IN RELATION TO NON-STATUTORY CONTROLS OF AN ASSEMBLY:

WHAT REMEDIES CAN BE IMPLEMENTED:

Answer 11

McIntyre v Sheridan 1993 SLT:
INTERDICT was used to restrain an actual or anticipated demonstration.
Participants can also expose themselves to CRIMINAL AND CIVIL LIABILITY.

Question 12

Foundational Freedom of Assembly Case:

1800s

Answer 12

Beatty v Gillbanks 1882

RATIO: people are free to associate and assemble to the extent that their conduct is not unlawful.

-ENG CASE

Question 13

** R (LAPORTE) v Gloucester Chief Constable (2008):

ESTABLISHED:

Answer 13

FACTS: The police had not acted lawfully in preventing coach passengers reaching the site of a demonstration because it could not be concluded that a breach of the peace was “imminent” at the time the coaches were stopped. The action was an interference with the protesters’ rights under the Human Rights Act 1998 Sch.1 Part I Art.10 (FREEDOM OF EXPRESSION) and Sch.1 Part I Art.11 (FREEDOM OF ASSEMBLY) and was disproportionate. Only 8 people on the bus were found to be members to an extremist anarchist group, but they did have balaclava’s and baseball bats. POTENTIALLY THE WRONG DECISION WAS HELD HERE.

HELD, Unlawful police action - breach of art 10&11 of the ECHR.

Question 14

PIDDINGTON V BATES (1961) ESTABLISHED AT COMMON LAW:

Answer 14

Concerns a Police officer dispersing picketers in front of a factory. Gave instruction based on preserving the peace. Piddington defied these instructions and was convicted of obstructing a police officer.

RATIO: Police have the power at common law to impose time, place, and manner conditions on assemblies independently of their S.14 POA 1986 Statutory powers. The limitations of S. 14 (ie must be more than 20 ppl & outdoors) do not affect the police’s power here.

-The test at common law is a ‘reasonable apprehension for breach of the peace’ as opposed to the test in the POA 1986, “serious public disorder, serious damage to property or serious disruption of the life of the community”.

Question 15

PREVENTATIVE POWERS OF THE POLICE:

CASE: THOMAS v SAWKINS (1935)

Police and Criminal Evidence Act (1984)

Answer 15

THOMAS V SAWKINS 1935 =
RATIO: POWER TO ENTER PRIVATE PREMISES IF FREE SPEECH/EXPRESSION WERE TO RENDER VIOLENCE.

POLICE AND CRIMINAL EVIDENCE ACT (1984)
=preserves the power of the police to enter premises to deal with or prevent a breach of the peace.

Question 16

What did the following establish:

Redmond-Bate v DPP (2000):

DPP = Director of Public Prosecutions

Art. 10 (2) ECHR:

Answer 16

REDMOND-BATE v DPP (2000):
RATIO = Free Speech includes not only the inoffensive, shocking, etc, is legal provided it does not tend to provoke violence.

Art. 10 (2) ECHR: FREEDOM OF EXPRESSION - applies to both favourable and inoffensive, as it applies to those that offend, shock, or disturb the state or any sector of the population.

Question 17

The following CASE established:

Handyside v UK (1976)

Answer 17

RATIO: TO LIMIT FREEDOM OF EXPRESSION THERE MUST BE A PRESSING SOCIAL NEED AND IT MUST BE PROPORTIONATE.

Question 18

R v Shayler (2002) Established:

Answer 18

Concerns MI6 agent tried to release information and argued there should be a Public Interest Defence read into S.1 of the Official Secrets Act.

Held, because there is an authorization procedure, no public defense is to be read into the Act and it is not a DISPROPORTIONATE violation of Freedom of Expression as such.

-Begs the question: is the limitation on expression as prescribed by the law, greater than what is necessary to maintain national security? Answer = NO.

Question 19

NATURE OF THE PROPORTIONALITY TEST:

DOMESTIC LAW v CONVENTION

Answer 19

GREATER INTENSITY in Judicial Review is required by the PROPORTIONALITY TEST in relation to Convention rights, but does NOT arise in DOMESTIC LAW WHERE THERE IS NO ENGAGEMENT OF A CONVENTION RIGHT AND NO FUNDAMENTAL RIGHT IS IN PLAY.

Question 20

With Respect to Freedom of Expression, what did the Following Case Establish:

REYNOLDS v TIMES NEWSPAPERS (1999)

Answer 20

CONCERNS DEFAMATION v FREEDOM OF EXPRESSION
CREATED “Reynolds privilege”.
R resigned as Irish Taoiseach and leader of the Fianna Fail party. The reasons for R’s resignation were of undoubted public interest, not least because of his association with the Northern Ireland peace process, and were the subject of an attack in the Sunday Times. R brought libel proceedings in which he failed but subsequently successfully appealed. T’s cross appeal was dismissed, the Court of Appeal holding that T was not protected by qualified privilege. T appealed, contending that the common law should recognize a separate category of qualified privilege relating to political information covering all reported matters, except for those proved to have been motivated by malice.

HELD, dismissing the appeal that although the law was concerned to ensure the unhindered dissemination of information properly in the public interest, the creation of a new category covered by qualified privilege would afford insufficient protection to individual reputations.

NEWSPAPERS ARE NOT ELIGIBLE FOR QUALIFIED PRIVILEGE

Question 21

CASE and 3 PART TEST FOR BREACH OF CONFIDENCE:

Answer 21

CASE: COCO v CLARK 1968

BREACH OF CONFIDENCE =
3 Part Test:
1) the information must have the necessary quality of confidence about it
2)that information must have been imported in circumstances importing an obligation of confidence
3) there must be an unauthorized use of information to the detriment of the party using it

Question 22

SPY CATCHER SAGA: EXPLAIN!

Answer 22

Concerns MI5 Agent, attempting to Publish sensitive material about his employment as a Spy.
Crown got an injunction as to the publishing of the book and a temporary injunction against the Guardian for reporting on it. It was then published in Australia and many copies had been snook back into the UK.The Crown then pursued a permanent injunction.

Held, in order to stop publication, the information must be detrimental, confidential, and must be useful/important. It had already become public knowledge and the permanent injunction failed.

RATIO: In order to get an injunction to publication, the information must be detrimental, confidential, important, and not already public knowledge.

Question 23

OFFICIAL SECRETS ACT -

1911:

1989:

Answer 23

1911 =
S.1 - acts prejudicial to the safety or interest of the state (Still in Force)

1989 = (has not been particularly challenged against the ECHR yet)

Defined Disclosure in relation to prohibition of official information –

S.1 - Security and Intelligence Services (all information assumed harmful w/o Lawful authority to disclose - NO PUBLIC INTEREST DEFENCE)

S.2 - Civil Servants (Must be a ‘damaging’ disclosure if without lawful authority – 4 categories are security/intell, defence, international relations, crime prevention/detection; R v Keogh 2007 established that if the defendant did not know the disclosure was damaging, that was sufficient to create a regular onus of proof on the prosecution.

S.5 Secondary Disclosure: Prosecution has to show secondary disclosure had reasonable cause to believe damaging. No need to encourage / facilitate. Stoll v Switzerlad

Question 24

FREEDOM OF INFORMATION:

List 4 Relevants Acts and sections -

Answer 24

1) FREEDOM OF INFORMATION ACT 2000
(UK WIDE AUTHORITY)
S.1 General right of access - any person can make a request to a public authority concerning information, as to when it is available, and to have it communicated to them.
The Authority can choose to ‘neither confirm nor deny’ any information if it is sensitive. No reason needed to refuse if the information is of
ABSOLUTE PRIVILEGE:
S. 21 already accessible, S.23 security, S.32 Court Records, S. 34 Parliamentary Privilege.
QUALIFIED PRIVILEGE EXAMPLES:
S. 36 Health an safety, S.38 Legal professional privilege, S.42 Criminal investigations.

Governance is by the Information Commissioner (ICO). Information Tribunals, Ministerial Veto’s = S.53 - CASE: Letters from Prince Charles to Ministers (Vetoed 2012).

2) PUBLIC RECORDS ACT 1958 : release of information after 30 year period with longer periods for sensitive information (up to 100 years or more).
3) DATA PROTECTION ACTS 1984/1998: limited access to personal information held on file by government; code of practice on access to government information 1994; grants one eligible to see what government holds as personal information against yourself.

4) FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:
(similar to 2000 UK-wide act, difference in exemptions.)
-more difficult for public authority to make public interest argument against disclosure
-No Tribunal
-requirement of disclosure = ‘substantial prejudice’
-only deals with Scottish public authorities and bodies
-if it’s a devolved issue, use the 2002 act, if reserved use the 2000 act.

Question 25

RIGHT TO PRIVACY VERSUS FREEDOM OF EXPRESSION:

CASE: VON HANNOVER v GERMANY (2005)

Answer 25

PRINCESS OF MONACO CASE

RATIO: Decisive factor in balancing right to private life (art. 8) versus Freedom of Expression (art 10) is whether or not the article/photos contributes to a DEBATE OF GENERAL INTEREST.

Held, she is entitled to her privacy, even as a public figure. She was not at an official function or carrying out an official role, and the article/photos related exclusively to her private life.

Question 26

RIGHT TO PRIVACY VERSUS FREEDOM OF EXPRESSION:

CASE: ***RE S (a child) (2003)

THE ULTIMATE BALANCING TEST

Answer 26

PARALLEL PROPORTIONALITY - BALANCING OF ART 10(2) and ART 8(2).

THE ULTIMATE BALANCING TEST:

1) neither article has precedence over the other;
2) Where in conflict, an intense focus of the comparative importance of the specific rights is necessary;
3) justification for interfering with or restricting each right must be taken into account.
4) proportionality test must be applied.

Question 27

MOSLEY v NGN (2008)

Answer 27

RIGHT TO PRIVACY OF A PUBLIC FIGURE WHEN RECORDED IN A PRIVATE SETTING.

Concerns Mosley, an F1 boss, filmed in sexual sado acts with 5 different dominatrices.

Question: was it a debate of general interest?

Mosley claimed damages and an Art 8 violation.

HELD,
Won in damages,picture published was disproportionate breach of privacy; but did not win on ground of art 8.